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Originally posted on March 5 (reposted after discussion with students at law school preview day)

Since my first posting on the Westboro Baptist Church case, I’ve discussed it in a bunch of different settings — on Facebook, at swim practice, at work. The case, recall, involved Albert Snyder, the father of a dead soldier who just wanted to bury his son in peace, against Fred Phelps and his sub-human followers (and their exploited children). I’ve also been reading around on the decision, coming up mostly with misty-eyed defenses of the holding. Andrew Sullivan is typical in this regard: In a brief post, he criticized French laws that criminalize certain kinds of hate speech while celebrating the decision in the Westboro case. His conclusion: “I’m glad I live here.”

But let’s look at the kind of behavior Sullivan is defending. According to the linked story from the Guardian, the defendant, John Galliano, has done such things as the following:

Galliano was arrested on Thursday in the chic Marais district of Paris after allegedly shouting anti-Jewish and racist insults at a couple. He denied the allegations and his lawyer said he was counter-suing the couple for defamation. Police said he had drunk the equivalent of two bottles of wine.

Two days later a second woman claimed Galliano had similarly insulted her in the same bar in October. Then a video was put online appearing to show Galliano on another occasion telling two women: “I love Hitler. People like you would be dead. Your mothers, your forefathers would all be fucking gassed.”

The last one is particularly upsetting, and it’s right here:

So this boor got right “into the grill” of these two women (to quote Marjorie Phelps during oral argument in the Snyder v. Phelps case), in a way that is beyond insulting and possibly even threatening. (Phelps herself implied that the speech shouldn’t be protected in such cases.) Is this really the kind of speech — especially the last spew — that the Founders would have wanted protected? And even if it was, so what? Back when the Nation was founded, we didn’t have tort law that protected against invasions of privacy or the intentional infliction of emotional distress, either. Now we do, and I’m in favor of drawing the line where others won’t, in favor of the plaintiff in this case. Here’s dissenting Justice Alito from Snyder v. Phelps:

“Our profound national commitment to free an open debate is not a license for the vicious verbal assault that occurred in this case.”

But almost everyone’s drunk on First Amendment Kool-Aid, and the trickle-down of this poisoned liquid has been to render criticism of the majority’s decision somehow almost un-American. Here’s Philadelphia Inquirer columnist Solomon Jones, trying to reconcile his anger with what he thinks the law requires, and coming up with a call for responsibility:

From a legal standpoint, perhaps the court made the right decision. But when I view it through the prism of fatherhood – a prism that bends and refracts the colors of love and hope that are embodied in our children – I can’t see a circumstance in which the protesters could ever be right.

Had I been that father, confronted by protesters while in the throes of unspeakable grief, I doubt that I could have maintained my composure. If you hate my child because you believe that he is tangentially connected to someone else’s lifestyle, that’s fine. Don’t disrespect or scandalize my child because of it. Don’t wait until he dies to twist the knife. Don’t hurt my child in order to prove a point to someone else. Confront the real target of your rage, and face whatever circumstances result.

That’s not what happened in this case. In this case, a group of people decided that it would be easier to confront the dead than to confront the living. That, in my estimation, is not only wrong. It is cruel. And yet their protests, as distasteful as they may be, are still protected under our laws.

I don’t pretend to understand the twisted logic that would allow professed Christians to compound a father’s grief by protesting at his son’s funeral. But I do understand that freedom brings with it profound responsibility. And in the case of these protesters, they abdicated that responsibility. They went beyond the pale.

Yes, speech in America is free. Yes, we can espouse whatever opinions we wish. Yes, we can gather and protest. But in a land where free speech is at the very root of our democracy, each one of us is responsible for what we say. We are responsible for where we say it, and especially in the case of those who claim to speak for God, we are responsible to an authority that the Supreme Court cannot touch.

But the misguided dopes that are part of the WBC aren’t reading this, much less taking it in. Almost everyone would agree that — laws prohibiting this kind of behavior aside — basic decency and a sense of responsibility militate against what the Phelpses did here. So the question is whether something more is needed. Tort law can supply that missing piece, compensating the injured party and deterring future such acts, and the jury’s verdict should have been allowed to stand. Would such tort liability “chill” speech, the catechismal concern of constitutional law scholars and jurists everywhere? I hope so.

I might be almost alone, but there are others who at least see a big problem here. A particularly astute Facebook friend writes:

I too am befuddled the lack of nuance in the widespread positive response and the increasing conflation of “free speech…” with “universally consequence-free speech.” The actual facts–both those considered by the majority in construing the signs and those set aside in (arguably: swept under) the first footnote [she means the “epic”, which the Court declined to consider] –would seem to make for a much closer call than most of the blogosphere recognizes, whichever side one comes down on.

The President of Portugal, Anibal Cavaco Silva, has just ratified a bill that brings marriage equality to that nation: the eighth in the world, and the sixth in Europe, to take this increasingly common step. And several other countries, like France and the U.K., permit “marriage in all but name” for same-sex couples.

Meanwhile, the Governor of Minnesota vetoes a bill that would simply have allowed surviving members of same-sex couples to decide what to do with their deceased partners’ remains, and permitted wrongful death lawsuits. The reasons? The bill was unnecessary and an affront to traditional marriage. (I’ll have more to say on the wrongful death part of this in Thursday’s column over at 365gay.com.)

This desperate propping up of “traditional marriage” against anything that might send any kind of indirect message is depressing. Compare the refreshingly practical approach of Silva, who personally opposes same-sex unions but has more important fights to wage:

Vetoing the bill would only send it back to Parliament where lawmakers would overturn his decision, [Silva] said, adding that the country needed to focus on overcoming an economic crisis that has increased unemployment and deepened poverty.

“Given that fact, I feel I should not contribute to a pointless extension of this debate, which would only serve to deepen the divisions between the Portuguese and divert the attention of politicians away from the grave problems affecting us,” Cavaco Silva said.

One day in the not-too-distant future, a leader of this country will make a similarly level-headed statement. Just don’t expect it to come from the current President.

According to this story, a National Nazi party (called the National Socialist Movement) has just adopted one mile of U.S. 85 in Colorado. Here, in their own words, is what they stand for: “The rights of white people everywhere…and promotion of white separation.” Want to join? Here’s who’s eligible: “non-Semitic heterosexuals’ [sic] of European Descent.” I guess it’s too much to expect good grammar from angry pinheads.

You know the drill: The state is helpless to prevent this message, it’s free speech, if the government allows one message it has to allow them all, blah blah blah. But is this true? First, states, however revenue-strapped, should get out of the business of having organizations “sponsor” miles of state roads. This is a quintessentially government function, and now we can see what happens when the government allows third parties to participate. Under the program, the sponsoring group agrees to pick up litter, thereby saving the state some money in would otherwise spend in doing so. A worthwhile project, but maybe not worth it. What’s next, the Wal-Mart Old Faithful Geyser? And the argument about the need for government to stay out of this dispute, by letting every message wash over it, is much too simple. States also have non-discrimination laws, and the state should be able to stand its ground here, saying that it can’t be in bed with neo-Nazis. Let them march. But they shouldn’t get the imprimatur of state sponsorship. States with those terminally annoying vanity plates set ground rules for those displays (i.e, no profanity, no offensive language, no sense of irony, etc.), so why not here? If we can dictate or limit what people place on their own cars, why not on state highways?

The policies related to the program are here. As you can see, the state leaves itself plenty of discretion. Why not use it in this case?

II. (Ne) Vive (Pas) La France!

I hate the burka. My reaction to it, and to what I think it says about the women who wear them — and worse, the uncovered husbands who enforce this anti-social discipline — is visceral.

I’m not alone. The French government, apparently taking its cue from the more defensible ban of religious symbolism in schools, is now seriously considering banning full face coverings from many public places, including government offices and public transportation. For a good debate on the issue, listen to the BBC Newshour story from today.

This would be a terrible mistake, precisely because people feel so strongly about the issue. It’s in those cases that individuals most need protection. And banning the burka will only mean that many Muslim women wouldn’t be able to leave their homes. How is that going to help the assimilationist goal of this legislation? I don’t oppose all government policies in support of secularism; in fact, we are too sometimes too far to the contrary, as with the bans on same-sex marriages, which are justifiable only by appeal to (dominant) religion, But this measure is likely to be counter-productive, and will feed the rhetoric of extremists.

As for the title of this post: It’s not fair, even in blog-hyperbole speak, to call this move Nazism. And the parallel I’m trying to draw is obviously too simple. But there’s surely something to it, and this latest move by the French should concern us all.